Gordon L. Weil
A group of state attorneys general, all Republicans, decide
to go to federal court to block the actions of then President Biden.
A group of state attorneys general, all Democrats, decide to
go to federal court to block the actions of President Trump.
They can go to a federal district court anywhere in the
country and try to get the judge there to issue an injunction halting the
president’s moves. Better yet, they hope
to convince a district judge, no matter how small or remote their jurisdiction,
to make that injunction apply across the country.
That’s often called a nationwide
injunction. Its prime characteristic
is its effect on non-parties to the specific case that would be similarly
affected by the president’s action.
These non-parties are usually the states that are still on the sidelines,
which may be the president’s supporters.
In filing the case, the complaining states can select the
district court where they will begin.
They look for a court where the likelihood of finding a judge favorable
to them is the highest. Judges may be
selected at random for new cases, so the states look for the smallest pool with
judges that share their politics or philosophy.
That’s called “judge shopping” or “forum shopping.”
For the Republicans, the desirable court may sit in
Amarillo, Texas, or Fort Pierce, Florida. Each of those courtrooms has only one
judge. In Florida, it’s Aileen
Cannon, who always does Trump’s bidding.
For the Democrats, that may be the court, consisting of
three judges, in Providence, Rhode
Island.
Of course, the losing side will take an unfavorable district
court decision to the Court of Appeals. There,
random selection of a panel of three judges does not assure approval of the
district court ruling. Still, the
political orientation of a majority of the relevant appeals court judges may be
similar to that of the district court judge.
Politics play a strong role in the nomination of judges. Of
course, a president will seek to name judges who share their political
views. Presidents traditionally rely on
the input or approval of a state’s U.S. senators in making nominations
in their states.
Decisions by Courts of Appeal are likely to be appealed to
the Supreme Court, when they involve states disputing presidential powers. Even
there, the political orientation of the justices and of the presidents who
nominated them may give that highest court a political hue.
It has become usual to see the justices referred to as
conservatives or liberals. They may
claim that they merely follow the law, but the law itself must be interpreted, and
individual judgments may reflect a justice’s political views.
The Supreme Court is increasingly facing cases involving
presidential or executive branch powers.
The public’s need for prompt action and executive pressure has led the conservative-dominated
Court to use procedural orders, the so-called “shadow docket,” to make
more rapid decisions.
That process can often allow for rulings with little or no
explanation of the Court’s reasoning. In
this situation, it may be influenced by the previous course of the case as it
came through the judicial process. Conservative district court decisions, even
if they must be modified, percolate upwards.
The Supreme Court has come to make many fewer rulings each
session. At the same time, it has given itself an essential role in sorting out
questions about the president’s powers.
Will the Court act along partisan lines or try to keep to
the law as it has previously been understood?
Trump and his backers count on its ultimate approval of their new views. Justice Amy
Coney Barrett, appointed by Trump, voted against his position in a recent procedural
order. She has been the target of bitter
attacks by Trump backers. They have also
called for the impeachment
of district court judges who oppose Trump positions.
More district court judges are needed, but new slots have
been blocked by partisan warfare. While
the presidential campaign was under way, House Republicans refused to approve
badly needed new slots. After Trump won,
they voted for enlargement. President
Biden then vetoed the bill, and no new judgeships were created.
This was a rare case of the Democrats playing by GOP rules. But the judicial system suffered because of
such partisan tussles.
The conservative Supreme Court was tilted to the Republicans
by Senate GOP maneuvers. Yet Biden and
the Democrats refused to consider enlarging the Court, when they could.
All the attempts to influence the course of the American
political system through judge shopping and nomination games may now have their
effect on whether any real limits are placed on Trump’s broad assertion of
control.
The last word may belong to judicial partisans as the
president pushes his powers and Congress collapses.
